Document Type

Article

Publication Date

2015

Abstract

This Article challenges the constitutionality of indiscriminately restraining civil immigration detainees during removal proceedings. Not only are immigration detainees routinely placed in handcuffs, leg irons, and belly chains without any individualized determination of the need for restraints, but Immigration and Customs Enforcement (ICE), the prosecuting party, makes the decisions about the use of restraints, rather than the judge. After examining the rationale for the well-established prohibition against the indiscriminate use of restraints during criminal and civil jury trials, and discussing how some courts have extended this rationale to bench trials, this Article contends that ICE’s practice violates substantive and procedural due process, as well as the regulations governing the authority of immigration judges and ICE’s own standards on restraints. The Article then provides empirical support for the arguments that restraints have profound cognitive and behavioral effects on both the restrained individual and the judge, drawing on studies of embodied cognition and implicit bias. These studies undermine the assumption that judges are immune to prejudice and emphasize how restraints interfere with a litigant’s right to participate fully in the proceedings, which supports more widespread application of the prohibition against indiscriminate restraints to hearings before a judge.

Publication Citation

67 Baylor L. Rev. 215 (2015).

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